C-87/76

1. The expression 'legislation' within the subparagraph of Article 10 (1) of meaning of Article 1 (j) of Regulation Regulation No 1408/71 applies to the No 1408/71 includes all provisions situation of a recipient of benefits laid down by law, regulation and guaranteed by the legislation of a administrative action by the Member Member State relating to employment States and must be taken to cover all exclusively in a territory which at the the national measures applicable in time maintained special relations with this case, not only within the a Member State, where that recipient, metropolitan territories but also in who is a national of a Member State, territories maintaining special resides in the territory of a Member relations with those States. State other than that which is 2. In the absence of express provisions to responsible for payment of social the contrary, the waiving of residence security benefits in respect of clauses prescribed by the first employment in the said territory.

In Case 87/76,

Reference to the Court under Article 177 of the EEC Treaty by the Tribunal du Travail of Brussels, for a preliminary ruling in the action pending before that court between

WALTER BOZZONE and

OFFICE DE SÉCURITÉ SOCIALE D'OUTRE-MER (overseas Social Security Office)

1 — Language of the Case: French.

JUDGMENT

Facts

The judgment making the reference and Fund) for an invalidity allowance under the observations submitted pursuant to the Colonial Decree of 7 August 1952 Article 20 of the Protocol on the Statute governing the sickness and invalidity of the Court of Justice of the EEC may insurance of colonial employees. He was be summarized as follows: granted this allowance until 31 January 1961 by decision of 18 August 1960. However, by a letter of 29 December I — Facts and procedure 1960, the Fonds des Invalidités informed him that since he did not actually and The plaintiff in the main action, Walter habitually reside in Belgium payment of Bozzone, is an Italian national who the allowance could not be continued worked in the former Belgian Congo, after 31 January 1961, in accordance now the Republic of Zaire, from 12 July with Article 2 (2) of the Colonial Decree 1952 to 13 May 1960. of 7 August 1952 which lays down that the beneficiary must have his actual and In April 1960, he left Africa for reasons habitual residence in Belgium, the of health and returned to Italy, having Belgian Congo, Ruanda-Urundi, or in a been notified in the meantime by his country with which a reciprocal employer that his contract was agreement has been concluded, unless terminated and having received the Fund has authorized him temporarily compensation amounting to three to leave his place of residence for reasons months' salary. On 20 April 1960 of health. On 7 February 1967 the Bozzone submitted a claim to the plaintiff submitted, through a Belgian Fonds des Invalidités (Invalidity professional association, a new claim for

allowances based on the Royal Decree of clauses, applicable to a recipient of 16 November 1966, extending to the benefits acquired in respect of nationals of the Member States of the employment exclusively in an EEC certain advantages provided by the associated territory when such Law of 17 July 1963 on overseas social recipient, who is a national of a security. In the view of the Tribunal du Member State, resides in the territory Travail, this claim was not well founded of a Member State other than that since his case related exclusively to which is responsible for payment of colonial social security because his the social security benefits in respect working life in the Congo terminated of employment in the said associated

1973. On 28 December 1973 the employed in an associated territory defendant in the main action notified Mr and at the same time subject to Bozzone of its decision that as from 1 specific legislation enacted by one of January 1974 it would discontinue the the Member States with regard to that benefits which had been awarded to him territory and the persons employed in since it was no longer possible to it, in this case the Colonial Decree of concede that his residence in Italy since 7 August 1952, as a worker who is or 1960 was of the temporary nature has been subject to the legislation of prescribed by the legislation.

Commission of the European Com munities. The Tribunal du Travail, Brussels, has therefore requested the Court of Justice of the European Communities to rule on Having heard the report of the the following questions: Judge-Rapporteur and the views of the 1. Is the first subparagraph of Article 10 Advocate-General, the Court decided to (1) of Regulation No 1408/71, open the oral procedure without any concerning the waiving of residence preparatory inquiry.

benefits. The economic preoccupations 3. A worker employed in an associated which guided the Belgian legislature in territory and at the time subject to 1952 and the fact that the decree upon specific legislation issued by one of which reliance is placed is a provision the Member States with regard to that adopted in a colonial context should not territory must be considered as a in any way change the application of worker who is subject to the Community rules. In terms of the latter, legislation of one or more Member Mr Bozzone should be considered as a States within the meaning of Article migrant worker; he should therefore 2 (1) of Regulation No 1408/71.' benefit from Article 10 of Regulation No 1408/71 of 14 June 1971, which The Office de Sécurité Sociale precludes all discrimination by reason of d'Outre-Mer, the defendant in the main the fact that the recipient of a benefit action, first outlines the circumstances in resides in the territory of a Member State which the dispute arose, commenting other than that in which the institution upon the arguments adduced by the responsible for payment is situated. Since parties before the Tribunal du Travail the latter, the Office de Sécurité Sociale and on the judgment given by that court, d'Outre-Mer, is a Belgian institution, the and so finds itself able to discern the fact that the recipient acquired purpose of the questions referred: it is to entitlement on the basis of employment ascertain whether a situation such as that in the Congo does not prevent the which has arisen in this case is covered application of Community Law. by the provisions of Regulation No 1408/71 or, on the contrary, by Article Finally, Mr Bozzone is a 'worker' within 135 of the Treaty and the agreements the meaning which the Court has given provided for therein. It is furthermore to that expression, that is to say a person appropriate to ascertain whether the insured for social security, even if he is social security legislation enacted for the no longer in fact employed. overseas territories is to be considered as

employed in an overseas country or The Belgian legislature merely guaran territory, the Office recalls the judgments teed payment of benefits under a of the Court (Nonnenmacher 92/63; legislation which had become a foreign Ciechelski 1/67; De Moor 2/67) which legislation although remaining defined the objective of Articles 48 to 51 unchanged. That being the case, does the of the Treaty and, in consequence, the Colonial Decree of 7 August 1952 form aim and scope of the implementing part of the 'legislation of one or more

Member State. A guarantee offered by a therefore be that Article 10 (1) of Member State does not create Regulation No 1408/71 is not applicable entitlement to benefits and a law to the recipient of benefits entitlement to embodying such guarantee cannot be which was acquired on the basis of considered as legislation to which a employment within an associated worker is or has been subject. territory, even where that recipient is a national of a Member State and resides in Moreover, the aim of the rules relating to the territory of a Member State other free movement of workers between than that which is responsible for Member States, and in particular Article payment of social security benefits on

Belgium, the Belgian Congo, Ruanda- 'A worker employed in an associated Urundi or in a State with which a territory and at the time subject to reciprocal agreement has been specific legislation enacted by one of the concluded. Member States with regard to that As regards the meaning of the expression territory and the persons employed in it 'legislation of one or more Member cannot be considered as a worker who is States', used in Article 2 (1) of Regulation or who has been subject to the legislation No 1408/71, the Office states that the of one or more Member States, within legislation applicable in this case is 'a the meaning of Article 2 (1) of Re colonial decree, emanating from the gulation No 1408/71.' King of the Belgians, legislator ordinary for the colony', which would form an The Commission of the European integral part of the internal law of Zaire Communities prefaces its submissions had it not been formally abrogated on 1 with an observation on the wording of July 1960 by the Zaïrian authorities. the questions referred to the Court by

the Tribunal du Travail, Brussels, and 1952 forms part of the colonial proposes to reverse the order of the legislation enacted by the Belgian questions since the reply to the first Authorities and applied in the Congo question is conditional upon the reply until 30 June 1960, that is to say, given to the second question. Moreover, following the departure from that the first question should refer to the territory of the plaintiff in the main whole body of rules of Community law action. Since that decree was which may be applicable and not merely subsequently abrogated retroactively in to the provisions of Regulation No Zaire, the Belgian Law of Guarantee of 1408/71 alone. The Commission pro­ 16 June 1960 ensured the continuity of poses to reframe the questions as follows: the system, as appears from Articles 9 '1. Is it necessary to consider a worker and 7 of that Law. Those provisions, employed in an associated territory which are indubitably applicable to the and at the time subject to specific person concerned, may be considered as legislation enacted by one of the legislation of one of the Member States Member States with regard to that for the purposes of the determination of territory and the persons employed in persons covered under Article 2 (1) of it, in this case the Colonial Decree of Regulation No 1408/71 and of the 7 August 1952, as a worker who is or concept of legislation defined in Article has been subject to the legislation of 1 (k) of the same Regulation. Article 4, one or more Member States within which determines the matters covered by the meaning of Article 2 (1) of the regulation, enumerates the branches Regulation No 1408/71? of social security, amongst which 2. Are the rules of Community law and invalidity benefits are expressly in particular the first subparagraph of mentioned. The very wide definition of Article 10 (1) of Regulation No the systems to which the regulation 1408/71, concerning the waiving of applies unquestionably includes a residence clauses, applicable to a colonial decree which was to be treated recipient of benefits acquired in in the same way as ordinary Belgian respect of employment exercised legislation and was in any event exclusively in an associated territory incorporated into the latter by the Law of when such recipient, who is a Guarantee of 16 June 1960. Regarding national of a Member State, resides in the arguments concerning the appli­ the territory of a Member State other cability of Article 51 of the Treaty solely than that which is responsible for to situations covered by the legislation of payment of the social security the Member States which is applicable to benefits in respect of employment in Community territories and other the said associated territory? In other territories expressly treated as such, it words, is Article 2 (2) of the Colonial must be emphasized that these Decree of 7 August 1952, as amended arguments are open to challenge. Indeed: by the Colonial Decree of 2 July — The fact that Article 135 of the 1956, contrary to the provisions of Treaty made provision for Community law and in particular to conventions which have never been

covered (Articles 2 and 4), and the 2. The first subparagraph of Article 10 concept of territory, which is not (1) of Regulation No 1408/71 must defined in Article 1, appears only as a be interpreted as applying to rights subsidiary matter in specific cases acquired pursuant to the legislation (Article 2 (1); Article 3 (1)), which are of a Member State, including the case clearly defined. where such legislation was enacted in respect of an associated territory and The case-law of the Court (Merluzzi the persons employed in it.' 80/71) has already accepted the application of Community rules to III — Oral procedure migrants who have been subject to the legislation of another Member State The public hearing took place on 8 within a former colonial territory. The February 1977. place where possible entitlement to Mr Bozzone, represented by Raymond benefits was acquired does not in any Schueler and Robert Versteegh, way change the 'national' character of Advocates of the Brussels Bar, expanded legislation embodying the rules allowing the arguments already put forward during such acquisition. The reply to be given to the written procedure and emphasized the first question should therefore be in the fact that in his opinion what was the affirmative. applied to him was indeed Belgian legislation, whether it be the Decree of In the Commission's view it therefore 1952 or the Law of 17 July 1963. In his follows that the reply to the second part view proof of this resides in the very of the question, as likewise reframed, jurisdiction assumed by the court which should also be in the affirmative. It is has referred the question to the Court sufficient that the clear wording of of Justice. Moreover, the 'reciprocal Article 10 (1) of Regulation No 1408/71 agreement' claimed by the Social should be followed, wherever the latter is Security Office could, at the very least, be applicable. Even if the Court were to give taken to be the EEC Treaty itself which a negative reply to the first question, the binds Italy and Belgium. reply to the second should remain in the affirmative by reason of the Treaty itself, The Office de Sécurité Sociale since Articles 48 to 51 preclude the d'Outre-Mer, represented by Professor introduction or retention of conditions as Michel Waelbroeck, Advocate of the

the Legal Service, laid particular Zaïre and 30 to 40 % were emphasis on the fact that the Law of transferred to new Belgian insti­ Guarantee by virtue of which the Social tutions, set up to continue the Security Office is at present responsible administration of repatriated capital; for payment of a pension to Mr Bozzone, — The concept of legislation within the is a Belgian law and that payment of any meaning of Article 2 of Regulation social benefits by an institution in a No 1408/71 should be interpreted as Member State to a citizen of the referring to 'the legislation to which Community may not be dependent upon workers have been subject in any condition as to residence, in view of metropolitan territories, European the legislative provisions and the territories in particular, of perhaps established case-law. also to the legislation to which those workers are subject in the European In reply to questions put by the Court, territories but by virtue of benefits the Office de Sécurité Sociale d'Outre-Mer acquired within the Community'. replied that: — 60 to 70 % of the assets of the The Advocate-General delivered his

colonial offices were acquired by opinion at the hearing on 9 March 1977.

Law

1 By judgment of 6 September 1976 which reached the Court Registry on 11 October 1976 the Tribunal du Travail, Brussels, referred to the Court pursuant to Article 177 of the EEC Treaty two questions intended to ascertain:

1. Whether the first subparagraph of Article 10 (1) of Regulation No 1408/71, concerning the waiving of residence clauses, is applicable to a recipient of benefits acquired in respect of employment exclusively in an associated territory when such recipient, who is a national of a Member State, resides in the territory of a Member State other than that which is responsible for payment of the social security benefits in respect of employment in the said associated territory; in other words, whether Article 2 (2) of the Colonial Decree of 7 August 1952, as amended by the Colonial Decree of 2 July 1956, is contrary to the provisions of Regulation No 1408/71 in that it requires actual and habitual residence in Belgium, the Belgian Congo, Ruanda-Urundi or in a State with which a reciprocal agreement has been concluded.

been 'subject to the legislation of a Member State', his situation is not governed by Community rules and the first question therefore becomes devoid of purpose.

6 It is therefore appropriate to establish first the scope of the concept 'legislation of a Member State'.

7 The defendant in the main action maintains that 'legislation of a Member State' must be taken to mean 'the legislation applicable in that Member State as opposed to that applicable in a country or territory which maintains special relations with that Member State'.

8 It deduces from that interpretation that the Community rules apply exclusively to the metropolitan territories of the Member States.

9 In interpreting the expression 'legislation' reference must be made to Article 1 (j) of Regulation No 1408/71 whereby that expression means all the laws,

JUDGMENT OF 31. 3. 1977 - CASE 87/76

14 Moreover, that Law does not merely guarantee benefits acquired pursuant to the decree but, by way of subsequent amendments, supplements it by providing for the grant of additional benefits (Article 5 bis) and in particular adapts it to the cost of living according to the rules in force in Belgium (Article 11, final provision).

15 As a whole, those provisions therefore constitute 'national legislation' within the meaning of Article 2 (1) of Regulation No 1408/71.

16 Finally, no special rules for the implementation of the legislation in question are laid down in the annexes to the regulation.

BOZZONE v OFFICE DE SÉCURITÉ SOCIALE D'OUTRE-MER

17 It is clear from these considerations taken as a whole that the second question referred by the Tribunal du Travail, Brussels, must be answered to the effect that Article 2 (1) of Regulation No 1408/71 is to be interpreted as applying to workers who are or have been subject to the insurance scheme instituted by the Decree of 7 August 1952, the continuity of which is guaranteed by the Belgian Law of 16 June 1960.

18 As regards the first question, it is sufficient to note that according to the first subparagraph of Article 10 (1) 'Save as otherwise provided in this regulation, invalidity … cash benefits … acquired under the legislation of one or more Member States shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated'.

JUDGMENT OF 31. 3. 1977 - CASE 87/76

On those grounds,

THE COURT

in answer to the questions referred to it by the Tribunal du Travail, Brussels, by judgment of 6 September 1976, hereby rules:

1. Article 2 (1) of Regulation No 1408/71 is to be interpreted as applying to workers who are or have been subject to the insurance scheme instituted by the Decree of 7 August 1952, the continuity of which is guaranteed by the Belgian Law of 16 June 1960.

2. In the absence of express provisions to the contrary, the waiving of residence clauses prescribed by the first subparagraph of Article 10 (1) of Regulation No 1408/71 applies to the situation of a recipient of benefits guaranteed by the legislation of a Member State relating to employment exclusively in a territory which at the time maintained special relations with a Member State, where that recipient, who is a national of a Member State, resides in the territory of a Member State other than that which is responsible for payment of social security benefits in respect of employment in the said territory.